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TMI Blog2021 (6) TMI 370X X X X Extracts X X X X X X X X Extracts X X X X ..... of the absence of the necessary details, has opined in paragraph 16 above that the petitioners are superfluous in their explanation of the delay in availing/failure to avail the appeal remedy. The delay in impugning the Order-in-original, which is not sufficiently explained, must be construed as unreasonable 4 and therefore, the writ petition must fail at this threshold bar. This consideration would be distinct and separate from examining the explanation offered for the purposes of condoning the delay which would be in the teeth of the decision of the Hon ble Supreme Court in OIL NATURAL GAS CORP. LTD. VERSUS GUJARAT ENERGY TRANSMISSION CORPORATION. LTD. AND ORS. [ 2017 (3) TMI 1628 - SUPREME COURT] . Whether a concrete mix manufactured at the site can be classified as RMC will have to be decided based on (1) the plant and machinery set-up for its manufacture, (2) the manufacturing processes involved, (3) the properties of the concrete mix and (4) the manner of delivery. It is undisputed that the petitioners have set-up a batching plant comprising of separate silos and concrete mixer with necessary pumps, piping system and control panel to manufacture concrete mix of required grade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Acts because the execution of works contracts involves the sale of goods and taxable services, but it is not engaged in manufacture of RMC. 3. The petitioners have narrated the circumstances leading to the present petition thus. 3.1 M/s Tata Housing Development Corporation awarded a contract to the first petitioner to construct residential buildings in Bangalore christened Promont Hilltop Residential Project (hereafter referred to as, "the project site"). The first petitioner set up a Concrete Mix (CM) plant at the project site to discharge its contractual obligations. The petitioners transported the CM manufactured at the Project's adjacent building site, and such mix was used exclusively for construction at the site. 3.2 The Superintendent (Preventive), Office of the Commissioner of Central Excise, Bangalore- III Commissionerate, Ministry of Finance, Government of India addressed letter dated 11.01.2016 to the first petitioner asking for details such as name and address of the Projects, copies of agreements/purchase orders, details (quantity/value) of Ready Mix Concrete (RMC) used in the projects and month-wise ledger extracts showing the value and quantity of RMC supplied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of certain goods. 3.6 The petitioners, on receipt of the Order-in-original, handed over the related papers to their tax consultants with instructions to prepare, finalize and file the first appeal before the appellate authority within the prescribed time under section 35 of the Excise Act. The petitioners were under the bona fide belief that the necessary appeal is filed in time in accordance with law. The petitioners were dismayed when they received the impugned letter dated 03.09.2020 directing the petitioners to pay the excise duty and the penalty with interest. On enquiry with the Tax Consultants, the petitioners learnt that the Tax Consultant by inadvertence and a bona fide error had not filed the necessary first appeal. The petitioners could not file such appeal even within the extended period because the time in that regard had also lapsed by then. 4. The petitioners' case is that this Court must interfere with the impugned Order-in-original in exercise of the extraordinary jurisdiction of the Court under Article 226 of the Constitution of India because such order is issued by the first respondent without jurisdiction. Sri Sandeep Huilgol, the learned counsel for the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned significant aspects. 6. Sri Huilgol emphasizes that if it is established that the petitioner has only produced CM and not RMC and the CM produced is used in situ, the CM is not exigible. In support of this submission, the learned counsel relies upon (a) entry at Serial No. 51 of the notification dated 01.03.1997 in No.4/1997-CA, (b) the Central Board of Indirect Taxes and Customs (CBIC) Circular dated 06.01.1998 and (c) the entry at Serial No. 144 of the subsequent notification dated 17.03.2012 in No.12/2012-CE. The terms of these two notifications dated 01.03.1997 and 17.03.2012 relied upon by Sri Huilgol are similar, and are extracted for immediate reference: Notification dated 01.03.1997: Sl.No. Chapter or heading No. or sub-heading No. Description of Goods Rate Conditions 51 38 Concrete mix manufactured at the site of construction for use in construction work at such site Nil ----- Notification dated 17.03.2012: Sl.No. Chapter or heading No. or sub- heading No. Description of Goods Rate Conditions 144 38 Concrete mix manufactured at the site of construction for use in construction work at such site Nil ----- The part of the CBIC clarific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner of Central Tax (Appeals) S1 and S2, Vinaya Marg, Siddharthanagar, Mysore under Section 35 of the Excise Act, and if justifiable even beyond the said 60 days but within the next 30 days. In the event, the petitioners had filed such appeal they could have invoked further remedies as envisaged under the subsequent provisions of the Excise Act. The petitioners, who have not availed the statutory remedy, futilely contend that the Order-in-original (and the subsequent letter of demand) is without jurisdiction asserting that the petitioners have only manufactured CM at the project site and they have not manufactured RMC. 9. Sri. Neeralgi relies upon the decision of the Hon'ble Supreme Court in the Assistant Commissioner (CT) LTU, Kakinada and others v. M/s Glaxo Smith Kline Consumer Healthcare Ltd. 2020 SCC Online SC 440, and is hereafter referred to as, the M/s Glaxo Smith Kline Consumer Healthcare Ltd case to assert that even if the petitioners can contend that the Order-in-original is without jurisdiction (which is entirely untenable), they should have approached this Court under Article 226 of the Constitution of India before the expiry of the statutory period contemplated under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic weighing gauges; that chemically treated water stored in a tank is fed to the batching plant as per requirement; that various admixtures like retarders, plasticizers et cetera stored in separate drums are sent to the concrete mixer by suitable pumps; that the concrete mix produced are tested for various grades and strengths; that during the breakdown or maintenance/repair of the plant, the petitioners have purchased RMC from third-party vendors and there is no difference in the quality of the concrete mix manufactured at the site by the petitioners and purchased from third-party vendors. Thus, it is established that the petitioners have used a batching facility to manufacture RMC of precise quality and different grades 11. Sri. Neeralgi submits that these circumstances clearly satisfy the test prescribed by the Hon'ble Supreme Court in Larsen and Toubro Ltd. and another v. Commissioner of Central Excise, Hyderabad supra to distinguish between RMC and CM. It is conclusively established that petitioners manufactured RMC using elaborate batch plants to specific and precise requirements and standards and such mix is exigible, and the contentions that because the petitioners were pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he celebrated decision of the Constitution Bench of the Hon'ble Supreme Court in the case of Mafatlal Industries Ltd v. Union of India (reported in 1997 (5) SCC 536) wherein it was held that the jurisdiction of the High Courts under Article 226 and that of the Hon'ble Supreme Court under article 32 of the Constitution of India could not be circumscribed by the provisions of the enactment (Central Excise Act) and they would certainly have due regard to the legislative intent evidenced by the provisions of the Act and would exercise their jurisdiction consist provisions of the Act. Further, the Court directed that the writ petition would be considered and disposed of in the light of and in accordance with the provisions of section 11 B of the Central Excise Act and for such a reason, the power under article 226 of the Constitution of India has to be exercised to effectuate rule of law and not for abrogating". 13. Sri Huilgol submits that the opinion that the Hon'ble Supreme Court in Glaxo Smith Kline Consumer Healthcare Ltd has declared (i) that the writ petition cannot be maintained against an Order-in-original if the statutory remedy is not availed and (ii) that the decision of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction2; and b. Whether the first respondent could have classified the concrete mix manufactured by the petitioners at the project site as RMC though the petitioners had not installed Stone crushers with vibrators or sand mill as part of their Batching Plant and the petitioners had manufactured concrete mix as civil contractors for captive use at the site and not for sale. c. If so, whether the Order-in-original is indeed without jurisdiction and this Court must interfere. 16. The petitioners could have availed statutory remedy against the impugned Order-in-original under section 35 of the Excise Act if they could invoke such jurisdiction within 60 days from the date of communication of the order or the next 30 days3. However, the petitioners have not filed such appeal. The petitioners' explanation for not filing the appeal is that they had entrusted the papers to their consultants with instructions to file the appeal and the concerned were under the bona fide belief that such appeal was filed until the impugned letter of demand dated 03.09.2020 was received. The petitioners, except for vague assertions in this regard, have not furnished the details such as the date of communi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersus Union of India and others (1997) 5 SCC 536 and also referred to by the Division Bench of the Judicature of Madras relied upon by Sri. Huilgol as also other decisions, the Hon'ble Supreme Court has delineated the settled propositions such as; a. that even though the High Court can entertain a writ petition against any order or direction passed/taken by the State under article 226 of the Constitution of India, it ought not to do so as a matter of course when the aggrieved person could have availed alternative remedy in the manner prescribed by law; b. that although the power of the High Court under article 226 of the Constitution is very wide, the courts must exercise self imposed restraint and not entertain the writ petition if an alternative remedy is available to the aggrieved person; c. that even the Hon'ble Supreme Court while exercising its plenary jurisdiction under article 142 of the Constitution of India is required to bear in mind the legislative intent and should not render the statutory provision otiose; and what cannot be done by the Hon'ble Supreme Court in exercise of its jurisdiction under article 142 of the Constitution of India, cannot be done by the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , these decisions are premised on the logic that provision such as Section 31 of the 1995 Act, cannot curtail the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. This approach is faulty. It is not a matter of taking away the jurisdiction of the High Court. In a given case, the assessee may approach the High Court before the statutory period of appeal expires to challenge the assessment order by way of writ petition on the ground that the same is without jurisdiction or passed in excess of jurisdiction - by overstepping or crossing the limits of jurisdiction including in flagrant disregard of law and rules of procedure or in violation of principles of natural justice, where no procedure is specified. The High Court may accede to such a challenge and can also nonsuit the petitioner on the ground that alternative efficacious remedy is available and that be invoked by the writ petitioner. However, if the writ petitioner chooses to approach the High Court after expiry of the maximum limitation period of 60 days prescribed under Section 31 of the 2005 Act, the High Court cannot disregard the statutory period for redressal of the grievance and entertain the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Supreme Court in Oil and Natural Gas Corporation Limited v. Gujarat Energy Transmission Corporation Ltd and others supra 23. Even otherwise, the petitioners' case that the order-in-original is without jurisdiction will have to fail in light of the decision in Larsen and Toubro Ltd. and another v. Commissioner of Central Excise, Hyderabad supra. The Hon'ble Supreme Court has held that "it is the process of mixing the concrete that differentiates between CM and RMC" and has also extracted with approval the summation as regards the difference between the two products in the following words: "From the literature quoted above it is clear that Ready Mix Concrete is an expression now well understood in the market and used to refer to a commodity bought and sold with clearly distinguishable features and characteristics as regards the plant and machinery required to be set-up for its manufacture and the manufacturing processes involved, as well as its own properties and the manner of delivery. RMC refers to a concrete specially made with precision and of a high standard and as per the particular needs of a customer and delivered to the customer at his site. Apparently due to the large ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the first respondent has rightly classified the concrete mix manufactured by the petitioners at the project site as RMC and the Order-in- original does not suffer from lack of jurisdiction. ----------------- Notes: 1. The rejoinder submissions by Sri Huilgol and the subsequent submissions by Sri Neeralgi are completed by the learned counsel after the petition was listed on the request of Sri Huilgol for further hearing. 2. If the answer to this question is in the negative, the other submission by Sri. Huilgol would not arise for consideration. 3. Section 35. Appeals to Commissioner (Appeals): - (1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer, lower in rank than a Commissioner of Central Excise, may appeal to the Commissioner of Central Excise (Appeals) hereafter in this Chapter referred to as the Commissioner (Appeals) within sixty days from the date of the communication to him of such decision or order : Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented withi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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